93 Decision Citation: BVA 93-09484
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-09 017 ) DATE
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THE ISSUES
1. Entitlement to service connection for a left
varicocele.
2. Entitlement to service connection for chronic rhinitis.
3. Entitlement to service connection for a left shoulder
disorder.
4. Entitlement to service connection for chronic back
strain.
5. Entitlement to service connection for chronic
bronchitis.
6. Entitlement to service connection for hearing loss.
7. Entitlement to service connection for residuals of a
right ankle sprain.
8. Entitlement to service connection for a cystic skin
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
William R. Harryman, Jr., Associate Counsel
INTRODUCTION
This case came before the Board of Veterans' Appeals (Board)
on appeal from rating decisions of the Wilmington, Delaware,
Regional Office (RO). The veteran had honorable active
service from October 1968 to August 1990. A rating decision
in March 1991 denied the veteran entitlement to service
connection for the stated disorders, as well as for
hemorrhoids. A notice of disagreement with the
determination was received from him in April 1991, and the
RO issued a statement of the case in June 1991. The
veteran's substantive appeal was received in August 1991.
At his request, his claims file was transferred to the
San Diego, California, Regional Office. Also at his
request, a personal hearing was held before a hearing
officer at the RO in January 1992. A rating decision by the
San Diego RO in February 1992 granted the veteran service
connection for hemorrhoids, assigning a noncompensable
evaluation. The record does not reflect that the veteran
has expressed any disagreement with that evaluation. A
supplemental statement of the case was issued in March
1992.
The veteran has been represented throughout his appeal by
Disabled American Veterans, which assisted him in presenting
testimony at his personal hearing and which had submitted
additional written argument on his behalf. The appeal was
received and docketed at the Board in June 1992, and is now
ready for appellate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that he was noted to have and/or was
treated for each of the stated disorders during service, and
that, therefore, they should be service connected.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all the
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against each of the veteran's claims for service
connection.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. A left varicocele present prior to service did not
increase in disability during service.
3. A disability claimed as chronic rhinitis was not present
during service, nor is any rhinitis now present reasonably
attributable to any incident of service.
4. No chronic left shoulder disorder is now present.
Complaints of problems noted in service regarding the
veteran's left shoulder were acute and transitory, and
resolved without residual disability.
5. Chronic back strain was not present during service.
In-service incidents of back strain were acute and
transitory, and resolved without residual disability. Nor is
any back strain now present reasonably attributable to any
incident of service.
6. Post-service chronic bronchitis is not shown.
7. Hearing loss meeting Department of Veterans Affairs (VA)
criteria for service connection was not present during
service or thereafter.
8. No chronic right ankle disorder is now present. An
in-service right ankle sprain was acute and transitory, and
resolved without residual disability.
9. No cystic skin disorder was present during service, nor
is one now present. Service connection has been established
previously for xanthelasma of both upper eyelids.
CONCLUSIONS OF LAW
1. Hearing loss was not incurred in or aggravated by
service, nor may sensorineural hearing loss be presumed to
have been incurred therein. 38 U.S.C.A. §§ 1101, 1110,
1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R.
§§ 3.307, 3.309, 3.385 (1992).
2. Neither chronic rhinitis, a left shoulder disorder,
chronic back strain, chronic bronchitis, residuals of a
right ankle sprain, nor a cystic skin disorder was incurred
in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131,
5107.
3. A left varicocele was not aggravated by service.
38 U.S.C.A. §§ 1110, 1131, 1153, 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board notes that we have found that the
veteran's claims are "well-grounded" within the meaning of
38 U.S.C.A. § 5107(a). That is, we find that he has
presented claims which are plausible. We are also satisfied
that all relevant facts have been properly developed. No
further assistance to the veteran is required to comply with
the duty to assist him mandated by 38 U.S.C.A. § 5107(a).
Service connection connotes many factors, but basically it
means that the facts, shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (1992).
I. Left Varicocele
The service medical records document that a left varicocele
was noted on examination in 1978, 1988, and at the time of
the veteran's separation examination in August 1990. The
veteran denied any symptomatology on each occasion, and no
other abnormal clinical findings were noted. The report of
his enlistment examination is not of record.
At his personal hearing, the veteran testified that a left
varicocele was noted at the time of his entry into service
and was repeatedly noted throughout service. He indicated
that, during service, it became more tender and increased in
size. He testified that he did not have constant pain, but
that he had been told that he would eventually need
surgery. He also stated that he did not take medication for
the disorder, but had been advised to wear jockey shorts and
athletic supporters. He also denied that it interfered with
his life.
A preexisting injury or disease will be considered to have
been aggravated by active military service where there is an
increase in disability during such service, unless there is
a specific finding that the increase in disability is due to
the natural progress of the disease. 38 U.S.C.A. § 1153
(West 1991).
Every person employed in active military service for six
months or more shall be taken to have been in sound
condition when examined, accepted and enrolled for service,
except as to defects, infirmities, or disorders noted at the
time of the examination, acceptance and enrollment, or where
clear and unmistakable evidence demonstrates that the
disease or injury existed before acceptance and enrollment,
and was not aggravated by such service. 38 U.S.C.A. §§
1111, 1132 (West 1991). This presumption is rebuttable by
affirmative evidence to the contrary. 38 U.S.C.A. § 1113
(West 1991).
Although the report of the veteran's enlistment examination
is not of record, the Board accepts the veteran's hearing
testimony to the effect that a left varicocele was present
at the time of his entry into service as affirmative
evidence of that fact. The presumption of soundness at
service entry, therefore, is rebutted. 38 U.S.C.A. § 1113.
While a left varicocele was noted on at least three separate
occasions during service, including at the time of his
retirement examination, none was reported by a VA examiner
just a few months later, despite having apparently been
specifically sought. Importantly, the only symptomatology
found in the record which is attributable to such a disorder
is contained in the veteran's hearing testimony.
A review of the medical literature indicates that, although
a varicocele is usually quite prominent, diagnosis often
requires careful evaluation. Various procedures are
sometimes needed to bring out a latent varicocele. At least
some clinicians believe that aggressive diagnostic
techniques are not indicated where a varicocele may be
"subclinical," feeling that there is insufficient data to
support surgical intervention. Campbell's Urology, 664 to
666 (Patrick C. Walsh, Ruben F. Gittes, Alan D. Perlmutter
and Thomas A. Stamey eds., 5th ed. 1986).
Although not specifically so diagnosed, it appears from the
record that the veteran's left varicocele is of the
"subclinical" variety, in light of the only intermittent
reports of its being found. Moreover, there is no
indication in the record that the preexisting left
varicocele showed any increase in disability during
service. Accordingly, service connection for a left
varicocele is not established. 38 U.S.C.A. §§ 1110, 1131,
1153.
II. Chronic Rhinitis
The service medical records document that the veteran was
seen on several occasions during service for complaints of
sinus congestion and head cold. Additionally, he was
treated on at least a couple occasions for symptoms
consistent with allergic rhinitis or hay fever. On each
occasion, the veteran was provided medication, and the
symptoms and clinical findings appeared to be self-limited,
and quickly resolved. At the time of his retirement
examination, the veteran complained only of infrequent
sneezing, and the examiner noted no pertinent abnormal
clinical findings.
The February 1991 VA examiner likewise noted no abnormal
findings consistent with chronic rhinitis.
Diseases of allergic etiology may not be disposed of
routinely for compensation purposes as constitutional or
developmental abnormalities. However, seasonal and other
acute allergic manifestations subsiding on the absence of or
removal of the allergen are generally to be regarded as
acute diseases, healing without residuals. The determination
as to service incurrence or aggravation must be on the whole
evidentiary showing. 38 C.F.R. § 3.380 (1992).
At his personal hearing, the veteran testified that he had
congestion each morning, which would progress during the
day. He indicated that he would sneeze frequently after
wakening, and that he took over-the-counter medication for
symptomatic relief. He also testified that he would not
necessarily ascribe his symptoms to the change of season,
but rather to changes in humidity or dust in the air.
During service, the veteran's symptoms of rhinitis typically
occurred in conjunction with a head cold or with other
symptoms consistent with allergic rhinitis or hay fever.
Although he was treated on several occasions during his more
than 20 years of active service, the incidents were rather
widely spaced, and on each occasion, resolved promptly
without residual disability. Significantly, post-service
medical records are negative for findings of rhinitis.
We find, then, that the veteran's in-service manifestations
of rhinitis were acute and transitory, resolved without
residual disability, and did not represent any chronic
disorder. Therefore, service connection for chronic
rhinitis is not established. 38 U.S.C.A. §§ 1110, 1131.
III. Left Shoulder Disorder
The service medical records reflect that the veteran was
seen in December 1987 for complaints of pain and weakness in
his left shoulder of 1 or 2 months' duration. He denied
trauma to the shoulder, and indicated that the pain began
suddenly when he was leaning on his arm while lying on the
floor. The veteran questioned whether the shoulder had been
dislocated. On examination at that time, the examiner
reported full range of motion and no abnormal clinical
findings. It was further stated that the veteran expressed
no complaints of pain on anterior rotation of the shoulder.
An X-ray was normal. The examiner noted that dislocation
and a rotator cuff tear of the left shoulder should be ruled
out. The veteran was referred to an orthopedic examiner at
that time who also noted no abnormal clinical findings,
except for the veteran's complaints of pain and tenderness
over the posterior one-third of the left deltoid area. The
record showing the diagnosis assigned is not completely
legible, but refers to some form of bursitis of the left
shoulder. The veteran was again seen complaining of left
shoulder pain in March 1988. The pain at that time
reportedly began 10 days previously, but had improved
following a steroid injection. The veteran noted soreness
after overuse of his shoulder, as well as dull pain
extending down the front of his arm. At the time of an
annual examination in November 1988, the veteran indicated
that he had a history of "painful joints." The examiner
reported no pertinent clinical abnormalities, however. The
report of the veteran's retirement examination in August
1990 also contains the veteran's notation that he had
infrequent pain throughout his shoulder. But, again, no
abnormal clinical findings were reported.
At the time of his February 1991 VA examination, the veteran
complained of soreness of his left acromioclavicular joint
anteriorly and also in the area of his left shoulder blade,
with burning pain radiating to both shoulders. On examina-
tion, there was full range of motion of the left shoulder
joint, no deformity, no swelling, and no tenderness. The
examiner assigned a diagnosis of a history of dislocated
left shoulder.
At his personal hearing, the veteran testified that,
although he had been treated for several months for shoulder
complaints during service, his symptoms had resolved. He
indicated that his left shoulder no longer posed a problem.
It should be noted that the law and regulations permit
service connection only for a current disability. It is
clear from the record, especially from the veteran's own
hearing testimony, that his in-service left shoulder
symptomatology and clinical findings were acute and
transitory, and resolved without residual disability. No
abnormal clinical findings were noted on the recent VA
examination, and the veteran has indicated that his left
shoulder no longer causes him any trouble. Accordingly, we
conclude that service connection for a left shoulder
disorder is not established. 38 U.S.C.A. §§ 1110, 1131.
IV. Chronic Back Strain
The service medical records show that the veteran was seen
in January 1982 complaining of mild lower lumbar pains. A
diagnosis of lumbar strain was assigned at that time. In
October 1989, the veteran was seen three days after
reportedly having fallen on a ladder, landing on his back.
He indicated to the examiner that, since the accident, he
had had increasing stiffness in his back. He denied any
radicular symptomatology, however. On examination, the
veteran was noted to be able to ambulate without difficulty.
The examiner reported no deformity, tenderness, ecchymosis
or edema of the veteran's back. It was noted that there was
some mild paraspinal muscle spasm. A diagnosis of mild low
back strain was assigned. The veteran was again seen in
March 1990 complaining of a two-day history of pain in his
right sacroiliac area after having fallen on his back three
days previously. The examiner noted spasm of the left
paraspinous muscles and tenderness over the right sacroiliac
joint. There was no erythema or swelling found. Range of
motion of the back was reportedly within normal limits. On
followup examination, the veteran reported good relief with
bed rest and medications. The report of the veteran's
retirement examination contains his notation of a history of
chronic, but infrequent, back pain for the previous eight
months. The examiner noted no pertinent abnormal clinical
findings, however.
At the time of the February 1991 VA examination, the veteran
expressed no complaints referable to his back. The examiner
noted that there was no tenderness over the veteran's upper
back and no deformity. No diagnosis was assigned.
The veteran testified during his personal hearing that he
had fallen a couple times during service, injuring his
back. He indicated that his back pain was sometimes affected
by prolonged standing or following an active day.
He described the pain as burning and throbbing. He further
stated that the pain would occur in his upper back. He also
testified to having sustained an injury to his neck in a
post-service automobile accident, and that he had more or
less recovered from that accident.
Despite the veteran's hearing testimony that he had had
chronic, intermittent back pain since his in-service back
injuries, it is clear to the Board that his in-service
complaints were attributed to differing areas of his back
and that the reported back symptomatology and clinical
findings resolved completely after each of the in-service
injuries. The medical records indicate that no abnormal
clinical findings referable to the veteran's back have been
reported since March 1990. Moreover, the effects of the
veteran's admitted intercurrent, post-service automobile
accident in producing recurrent symptomatology cannot be
minimized. We find, then, that the veteran's in-service
back injuries were acute and transitory, and resolved
without residual disability, and that any current back
symptomatology is attributable to his post-service accident.
Therefore, service connection for chronic back strain is not
established. 38 U.S.C.A. §§ 1110, 1131.
V. Chronic Bronchitis
As indicated above, the veteran was seen on several
occasions during service for complaints of head or chest
colds. The report of a visit in May 1990 notes a complaint
of sinus congestion for the previous few days. The examiner
noted the presence of mild bronchial congestion, and
assigned a diagnosis of bronchitis. Another undated report
notes the veteran's complaint of a productive cough for the
previous month. He had reportedly been taking antibiotics
for the previous week without improvement. That examiner
also noted that the veteran continued to smoke cigarettes.
On examination, it was reported that there were bilateral
rhonchi. A diagnosis of persistent bronchitis was assigned,
and further medications were prescribed. At the time of the
veteran's retirement examination, however, he denied a
history of a chronic cough, and the examiner reported no
pertinent abnormal clinical findings.
The February 1991 VA examiner also reported no abnormal
clinical findings. However, the veteran reported a history
of "bronchitis" "3 or 4 times a day." The final diagnosis
was bronchitis, by history.
At his personal hearing, the veteran testified that
bronchitis had been diagnosed on several occasions during
service and had been associated with colds and flu. He
indicated that he then (at the time of the hearing) had no
chest congestion or wheezing.
The record demonstrates that no abnormal clinical findings
attributable to chronic bronchitis have been reported since
May 1990. Further, the report of the veteran's retirement
examination and his own hearing testimony indicate that he
is not now troubled by any symptoms attributable to chronic
bronchitis. Accordingly, we find that a diagnosis of
chronic bronchitis is not reasonably substantiated.
Therefore, we conclude that service connection for bronchitis
is not established. 38 U.S.C.A. §§ 1110, 1131.
VI. Hearing Loss
The service medical records show that on some of the
occasions when the veteran was treated for a sinus conges-
tion, he was noted to have fluid behind one or both of his
eardrums. On a couple of occasions, he complained of an
earache. Only once, however, do the records document any
complaint approaching that of hearing loss: In May 1990, he
reported a "muffled feeling" in his ears. The reports of
several audiometric evaluations spanning the years from 1968
to 1990 note no pure tone threshold greater than 30 decibels
in either ear at frequencies of 4,000 hertz or less. In
fact, no threshold greater than 15 decibels was reported in
either ear at those frequencies on any in-service examination
other than the veteran's retirement examination. The report
of that evaluation notes a threshold of 30 decibels at 4,000
hertz in the veteran's right ear.
An audiometric examination was also performed at the time of
the February 1991 VA examination. At that time, pure tone
thresholds of 10, 10, 5, 10 and 30 decibels were reported in
the veteran's right ear at 500, 1,000, 2,000, 3,000 and
4,000 hertz, respectively. Pure tone thresholds of 10, 5,
5, 20 and 25 decibels were reported at the same frequencies
in the veteran's left ear. Speech discrimination scores of
100 percent were noted for each ear. The audiologist
indicated that the left ear hearing thresholds were within
normal limits, but there was mild high frequency sensori-
neural hearing loss in the right ear.
At his personal hearing, the veteran testified that he had
been told by service department personnel that he had
hearing loss during various in-service tests. He indicated
that during part of his service his duties included manning
a gun mount. He further stated that the hearing loss did
not interfere with his life.
Service connection for impaired hearing shall not be
established when hearing status meets pure tone and speech
recognition criteria. Hearing status shall not be
considered service-connected when the thresholds for the
frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are all
less than 40 decibels; the thresholds for at least three of
these frequencies are 25 decibels or less; and speech
recognition scores using the Maryland CNC Test are
94 percent or better. 38 C.F.R. § 3.385.
As indicated, the regulations are quite specific as to the
criteria to be met to establish service connection for
hearing loss. The service medical records simply do not
demonstrate that the veteran had any hearing loss. In
addition, although the recent VA audiologist indicated that
the veteran had high frequency sensorineural hearing loss in
his right ear, the data obtained during that evaluation do
not meet the criteria for service connection for hearing
loss in either ear.
The regulations do provide that sensorineural hearing loss
shall be granted service connection, although not otherwise
established as occurred in service, if manifested to a
compensable degree within one year following the veteran's
separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113,
1137; 38 C.F.R. §§ 3.307, 3.309.
A noncompensable evaluation is assigned for bilateral
defective hearing where, as here, the pure tone threshold
average in one ear is 14 decibels, with speech recognition
ability of 100 percent correct, (level I), and, in the other
ear, the pure tone threshold average is 14 decibels, with
speech recognition ability of 100 percent correct, (level I).
38 C.F.R. § 4.85 and Part 4, Code 6100.
Therefore, it is clear that hearing loss meeting VA criteria
for service connection was not present during service or
within one year thereafter.
Accordingly, we conclude that service connection for hearing
loss is not established on either a direct incurrence or
presumptive basis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1131, 1137; 38 C.F.R. §§ 3.307, 3.309, 3.385.
VII. Residuals of Right Ankle Sprain
The service medical records document that the veteran was
treated in May 1970, when his right ankle was noted to be
swollen with a slight hematoma. No diagnosis was given, but
the ankle was treated with an Ace wrap. No further
complaints or positive clinical findings referable to the
right ankle were noted at any time during the veteran's
service. However, the report of an annual examination in
1988 and the report of the veteran's retirement examination
indicate his vague notation of "painful joints." Neverthe-
less, no pertinent abnormal clinical findings were recorded.
At the time of his February 1991 VA examination, the veteran
reported having repeatedly sprained his right ankle during
service, the last time being two years previously. He also
stated that the ankle has posed "no problem" since that
time. The examiner recorded that there was full range of
motion in the ankle, which was without swelling or tender-
ness. The diagnoses assigned included a history of a right
ankle sprain.
The veteran testified during his personal hearing that he
sprained his right ankle on numerous occasions during
service, and that he must now be careful not to reinjure the
ankle. He indicated that the ankle now hurt and was weak.
Additionally, he testified that he had sprained the ankle on
one occasion since his separation from service. (No medical
record of treatment for that sprain is of record, however.)
As noted above, service connection is appropriate only for a
current disability. Despite the veteran's testimony to the
contrary, the service medical records do not document
complaints or clinical findings consistent with chronic
residuals of a sprained right ankle subsequent to 1970. In
addition, the report of the recent VA examination noted no
pertinent abnormal clinical findings whatsoever. We find,
then, that the one documented occurrence of a sprained right
ankle during service was acute and transitory and resolved
without residual disability.
Accordingly, we conclude that service connection for
residuals of a right ankle sprain is not established.
38 U.S.C.A. §§ 1110, 1131.
VIII. Cystic Skin Disorder
The service medical records note findings on various
occasions of a scaly, pruritic rash over the left eyebrow
area and of seborrhea of the right eyebrow. On one occasion,
the veteran was seen complaining of an asymptomatic growth
on his left eyelid. A diagnosis of xanthelasma was assigned.
In December 1981, he was treated for a rash on his chest and
in March 1982 he was treated or skin problems possibly
associated with mite bites. On an annual examination in
1987, the presence of a left upper eyelid cholesteatoma was
reported. No complaints or positive clinical findings
consistent with any skin disorder whatsoever were noted
subsequently in service.
At the time of his February 1991 VA examination, the veteran
indicated that he had had a "cyst" removed from his upper
eyelid. Examination reportedly revealed xanthelasma of the
left upper lid. The skin was otherwise normal.
At his personal hearing, the veteran referred to recurrences
of growths on his eyelid which apparently seemed to subside.
It is noted that service connection was granted for
xanthelasma of the upper eyelids by the March 1991 rating
decision.
In the absence of medical evidence of any other chronic skin
disorder, either in service or subsequently, we conclude
that service connection for a cystic skin disorder is not
established. 38 U.S.C.A. §§ 1110, 1131.
Although we have considered the doctrine of affording the
veteran the benefit of any existing doubt as to each of the
issues on appeal, the evidence is not so evenly divided on
any issue to permit application of the provisions of
38 U.S.C.A. § 5107(b).
ORDER
Service connection for a left varicocele, for chronic
rhinitis, for a left shoulder disorder, for chronic back
strain, for chronic bronchitis, for hearing loss, for
residuals of a right ankle sprain, and for a cystic skin
disorder is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(MEMBER TEMPORARILY ABSENT) M. SABULSKY
L. W. TOBIN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
(CONTINUED ON NEXT PAGE)
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.